School Choice is Racist and Other Myths

Mike McShane: Hello and welcome back to another edition of EdChoice Chats.

This is Mike McShane, Director of National Research at EdChoice, and today I am joined online by Michael Bindas, who is a senior attorney at the Institute for Justice, and we are going to be talking about a paper that he wrote in the Syracuse Law Review titled School Choices, Racist, and Other Myths. And I need to just say something here at the beginning to head off criticism that may happen of this podcast. This paper is so good.

I think it was when I was preparing for my congressional testimony earlier this year, I feel bad I didn’t read it when it came out, but I happened upon it. And of course, you and I know each other, so I feel like I should have known this, but it was in my own searching. And I started reading this, and I’m like, this is gold.

This is great. The history of the thing. So listen, if you’re listening to this, and you’re like, McShane is pumping this guy’s tires.

Guilty. Guilty as charged. I think this is great.

And so I think I said at the time, I shared, I’m like, everybody in the school choice movement needs to read this paper. I know not everyone reads lengthy law review articles, though they should. And so we’ll have a chat today about it, and I think we’ll hopefully hit the high points of it.

And for people who really want to dig in, you can go to the Syracuse Law Review. You can see school choices, racists, and other myths. So Michael, it’s great to have you.

I wanted to ask, because I saw actually in your kind of bio that they put at the beginning of this. It says, you know, Michael Bindas is senior attorney for the Institute for Justice, and he served as counsel of record at the US Supreme Court for the prevailing families in Carson v. Macon.

And I was like, that means what I think it means. That means that you actually had to stand up there in front of those justices. And right before this, I looked up the oral arguments, and by God, if when I scrolled down, I didn’t see your name.

So before we get into this paper, I have to ask you, what was that like? Is that the only time that you’ve done it? And any time in which you’ve done it, what is it like to actually stand up there?

And was it may it please the court, or however it begins? What was that like?

Michael Bindas: It was, yes, to answer your question, it was the first time. And you know, in all likelihood, I’ll never get a shot again to do it.

It was a once in a lifetime opportunity. I was very, very fortunate and privileged to have that opportunity. And it was nerve wracking.

And I would say the other adjective would be like humbling, just to be there before these nine people who were, you know, brilliant minds trying to do their best to interpret the Constitution, get it right. And to think that I could play some small role in helping them to do that was just incredibly humbling. And again, like I said, it was it was the opportunity of a lifetime.

And fortunately, we also got a good result out of the case. So it worked out well.

Mike McShane: So like the prep for that, are you prepping around the clock for weeks? Are you imagining all of these questions? Or are you you know, the stuff backwards and forwards?

So you’re staying loose? Like what are you doing in the lead up to that?

Michael Bindas: No, my family was I think my I certainly miss my family. I hope I hope they missed me.

But there was a lot of prep. So I work in the Institute for Justice’s Seattle office. And of course, the you know, argument was in DC.

And we did a lot of prep work for the argument. We did a lot moot arguments internally at IJ, but also with external folks. So both kind of sympathetic people, or at least, you know, we brought in judges, or, you know, acting judges who we thought would see the law our way, but also deliberately brought in folks who we know didn’t see it quite our way.

Because that’s going to be the best preparation, right? I don’t want just friendly softball questions. But we want the we want to anticipate the hard questions that are going to come from the justices that don’t quite see the law, perhaps the same way we do.

And I can honestly say that we anticipated probably at least 90% of the questions through that mooting process. And in that light, I was very prepared when I went into the courtroom, not necessarily because of anything I personally had done, but because of the incredible job that these many folks had done in helping me prepare and putting me through my paces as I was getting ready to go to the podium. So it was an incredible preparation process.

It was, I wish I could have done what you suggested or just walk in and I know this stuff cold, so I don’t have to. But no, it was definitely not like that. And like I said, I, I really just wanted to get back to my family.

It’s all said and done. And I think they wanted me back too. So yeah, that’s what it was like.

Mike McShane: And you won. I mean, and that’s the great thing too, is that you can even look back and say like, Oh, you know, I didn’t give every answer. I necessarily like, like the, the, the pitcher on a winning team.

Oh, you know, I threw a couple, a couple in the dirt that I didn’t want to, but we came out with the win. So it’s great. You can be magnanimous and humble about the whole thing.

That’s that’s pretty awesome. And so we’re then, were you all sort of together when the, or where were you when you found out that you had succeeded?

Michael Bindas: Goodness. That’s a great question because you don’t have, I mean, we had a pretty good idea of when the case was going to come down just because it was very close to the end of the session of the court session. So the court typically breaks at the very end of June or the earliest, uh, you know, a couple of days of July.

And we hadn’t had a decision yet. Um, we were, I think in the last week of June and I honestly don’t remember where I was. What do they call it?

Mike McShane: Is it like the running of the interns or something? It wasn’t as all the news channels send in the people to get the, the, the actual printed.

Michael Bindas: Yeah. I was not in the courtroom. So I didn’t thankfully didn’t get stampeded by your, but you’re absolutely right.

From what I’ve heard from, from, from the press that that is what it’s like when the, when the opinions are handed out at the court’s press office. But now I, for whatever reason, I can’t, um, honestly, I can’t remember.

Mike McShane: I gotta say that’s another, that’s another, again, people are going to accuse me of pumping your tires, but that’s a big time answer, right? As opposed to other people would be like, I know the mid day, like, listen, you know, we argued for the Supreme court. You win some, you lose some, we happened to win that day.

I don’t even remember what I was doing. That’s fantastic.

Michael Bindas: It was, you make it sound like, yeah, it’s just another day at the office. It was, it was just another sign that my memory is going with age. I think is, is the issue.

I, I remember calling the clients, um, and, and you know, the, the Carson and Nelson families. And, and, uh, that’s, that’s the most rewarding thing. Like, yeah, it’s great to get a victory, um, in a, in a case like this or in any case, but the biggest reward is being able to get that victory on behalf of real people who actually, um, you know, whose rights are at stake, whose constitutional rights are at stake.

And that to me is the most meaningful aspect of what I do, whether it’s in this case or any other case. So. Fantastic.

Mike McShane: Well said. That’s awesome. Um, well, let’s turn to this paper. So this has obviously been a topic of conversation, really you sort of highlighted like a group like the center for American progress a couple of years ago, coming out with a paper. Cause you’d, you’d heard this in sort of fits and starts in school choice world.

This idea of school choice was racist, either racist in its current, um, incarnation, or you heard about some people in the past doing racist things with it, but really in the past couple of years, this has magnified. Maybe we can start there. Like, where did this argument sort of come from?

How did it sort of enter the current kind of zeitgeist of school choice?

Michael Bindas: Yeah. So great question. So, you know, when the, when the school choice movement or the modern school choice movement is maybe we’ll talk about why distinguish between modern versus school choice movement more broadly, but when the, when the modern school choice movement was really in its infancy.

So in the, in the early 1990s, right, 1990, we get the first modern choice program in Milwaukee, the Wisconsin legislature adopts the Milwaukee parental choice program. Um, you know, from that point on the opponents of choice. So the public school establishment, as I like to call them, we’re determined to prevent these programs from either being enacted.

So they would challenge them in the state houses. And if they couldn’t block them there, they would turn to the courthouse and file lawsuits, trying to take the opportunity that these programs provided to children away from them. And from those earliest days, they determined that their winning, um, uh, argument, uh, against these programs was going to be religion.

And so they went all in on religion. Uh, you know, they argued that these programs violated either the establishment clause of, of the first amendment of the United States constitution, because, uh, uh, students were allowed to attend religious schools under these programs, or they, uh, alternatively argued that they violated similar provisions. Uh, well, not similar, but, uh, Blaine amendments and, and, and provisions in state constitutions that prohibit public funding of, uh, religious or sectarian schools.

Um, so that, that was the kind of ground on which they decided to wage their war. But over the course of many years and, and, and several decades, that argument, uh, that kind of tact that they took failed. Um, so in 2002, the U.S. Supreme court holds in a case called Zellman versus Simmons Harris, that it’s perfectly fine to have school choice programs that include religious options. Uh, so long as the program is neutral between the two, between religion and non-religion. And so long as it’s operating on the, on the choice of parents. So that took the establishment clause issue off the table.

Then in a series of state Supreme court, uh, decisions, those attempts to weaponize state provisions to attack these programs on religious grounds, those, those lawsuits were also backfiring and it was becoming increasingly clear that that was not going to be, um, a winning tact either. Um, so, you know, and of course, you know, by, by, uh, 2020 and 2022 and a pair of decisions, Espinoza and Carson, the Supreme court rejected those arguments as well. Point blank.

It said, you cannot, uh, not only is it permissible to include religion in these programs, it’s impermissible to exclude religion. Uh, so that took the religion question off the table completely, but as it was becoming increasingly clear that, that, that this religion kind of based war was not going to carry the day for school choice opponents, they started looking for another, uh, ground on which to wage their war. And they decided from, you know, my, uh, my read to, to replace religion with race.

Uh, and so in 2017, as it was becoming clearer and clearer that the, the old religion based attacks were going to fail at the center for American progress publishes a paper, um, that talks about the supposed racist origins of school choice as a concept or as a racist origins of, uh, of school choice and, and the supposedly racist or segregative, uh, effects that these programs have today. And that is the point at which I think that, um, the anti-school choice movement, the public school establishment really pivoted from religion to focusing on race. We’ve seen both in the court of public opinion and increasingly in the court of law, them turning to kind of race based attacks on school choice, as opposed to the old religion, uh, based attacks, which they can no longer Mount in light of those Supreme court decisions that I mentioned.

Mike McShane: So that’s fantastic. Um, thinking about that of, well, it’s not fantastic that they’re doing that, but that was a great summary of, of, of what is happening. So it’s probably worth, you know, we have this idea of, it was racist in the past.

It’s racist in the present. We’ll sort of take each of those in turn. So let’s start with this idea that again, this cap report and others, there’ve been some books that have come out, um, after this care of Fitz Patrick’s book, I think makes a number of these arguments as well, though, I would argue more carefully than the, than the cap paper did.

But so what is, if we may be steel man, like, so what is the argument that they were making in the past that these were used by segregationists or racists, um, uh, school choice was used by them to do evil things.

Michael Bindas: Sure. Sure. And, and, you know, there, there is a kernel of truth to this.

Uh, it’s undeniable that, um, after Brown versus board of education, uh, came down from the Supreme court in 1954, that Southern states used vouchers, um, uh, among other means as a way to circumvent the Supreme court’s decision. So Brown, of course, orders the, um, public schools to integrate. And so, uh, rather than comply with that, uh, mandate of many Southern states, uh, did two things.

They closed in many situations, public schools, uh, rather than integrate them, uh, and provided vouchers to students to use, to attend private schools. And of course, private schools were still free at that point to discriminate based on race. And so what they were doing was simply, you know, perpetuating the systemic, uh, uh, segregation that the Supreme court was trying to end with Brown, uh, through this device of providing vouchers to, uh, children, which could only be used at private schools that were still discriminating or still at least free to discriminate about based on race at the time.

So, uh, there is a kernel of truth to this argument. This was a horrible episode in the 1950s and early 1960s, where the concept of school choice, uh, was used, uh, for horrible, horrible ends. But I would say a couple of things on that.

Number one, that’s not the origin, uh, uh, the origin story of school choice, school choice as a, as an idea. And as a practice preceded Brown versus board of education by many years, in fact, by almost a couple of centuries. And number two, I would stress that these kind of devious means that Southern segregationists were, were, were employing to, to thwart the Brown decision weren’t really choice programs at all.

Yes, they used vouchers, but they often used vouchers in combination with shuttering the public schools, leaving black students with no choice whatsoever. They didn’t have their public school anymore, um, or, you know, they didn’t have, certainly didn’t have an integrated public school. And in many cases, there was no public school left to integrate, but they also couldn’t use these vouchers anywhere because the private schools that were being set up purposely as part of this scheme were allowed, uh, at that point to continue to discriminate based on race.

So it left black students with no choice at all. So to, to claim that this is the origin story of choice is just false because the whole purpose of these schemes was to deny choice.

Mike McShane: And I think that’s such an interesting point in this paper, because to be honest with you, before I read your paper, you know, being roughly familiar with these other cases, I think in some ways I would, in that argument, I would sort of concede too much ground. And I would sort of say like, Hey, yes, I mean, these racist scumbags use this, but at that time period, racist scumbags were using a lot of different things. Um, whether it was minimum wage laws or was it labor unions or abortion or lots of other things that we talk about today, races had a whole lot of thought and uses for those back in the day.

And just because racist back then used them doesn’t mean that that necessarily, I mean, the very people, many of the very people who are complaining about this would have no problem with those other things. But, but the point that you make in this paper that I think is really worth underlining is that like these actually weren’t choice programs, right? They didn’t give people a choice.

They shut down the public schools. They only had segregated private schools. So it was really just a sort of, I don’t know what you would cup game where we just moved the public schools to the private schools and kept them segregated.

No one had a choice in this matter. And it seemed like in any place where anyone actually tried to say, Hey, wait a second, we actually want this as a choice. Um, people said, no, we’re, we’re, we’re not interested in that.

Michael Bindas: But that’s a great point. And I think another, um, uh, really interesting, um, aspect of, of this, this, this, as you put it, the kind of cup game, or I don’t know if it’s three card Monte or what the appropriate metaphor here is, is that oftentimes when the public schools were shuttered, the, the facilities, the equipment were just handed over to these new quote unquote private schools that were free to continue engaging in the same discrimination that the now shuttered public school was engaging in. Oftentimes the, the faculty and the administration of, of the public schools left on mass to go to these now quote unquote private schools. Um, and, and, and that’s another really interesting point here is that oftentimes it was the public school establishments itself that was employing these, uh, schemes in order to continue doing what they had been doing for decades and decades, which was discriminating against African-American students.

So, you know, I think that’s another important point to stress here is these schemes were a denial of choice. They were not providing choice. They were taking it away.

And oftentimes it was the public school establishment that was front and center in employing these means to deny a choice to black children.

Mike McShane: And again, we cannot underline enough racist scumbags, these racist scumbags were grabbing like any weapon at hand. Right. It was sort of, and, and frankly, at least from what I understand of some of this history, like choice or vouchers was actually like the fifth or sixth thing that they tried, you know, it’s like, we’ll shut down the schools or we’ll, you know, they had all sorts of different means of, of trying to do this, of finding different ways to, and it was only after it was like, court said no, or legislature said no or whatever. Then it was like, well, these choice programs. So at that point you realize it’s like, well, these guys aren’t really, they’re not really choice guys.

They are, they are unreconstructed segregationists and whatever they can use, they will twist to those, to those ends.

Michael Bindas: And unfortunately that was, you know, again, getting back to this idea that the, the, the public school establishment played a role in this. I think it’s really, really telling that the national education association wasn’t involved in the Brown litigation. They, they didn’t, they didn’t represent anyone in that lawsuit.

They didn’t file a friend of the court or an amicus brief in support of the black children in that case. They did nothing to support the rights of those black public school children who were litigating the case. And in fact, when the decision came down, the NEA published it without comment in the NEA journal, the official journal of the NEA and just said, basically this happened.

It was not until 1961, seven years later, until the NEA actually publicly supported the result in Brown. And so I’m not suggesting that the NEA, you know, the public school or school choice advocates often charge school choice proponents with relying on racism or, or in some cases, you know, trying to perpetuate racism today. I’m not suggesting that today’s NEA or even necessarily the NEA back then was necessarily kind of overtly racist, but they did nothing at all to ensure that the Supreme Court’s decision in Brown was complied with particularly in Southern states and in Southern public schools.

You know, seven years went by before the NEA publicly endorsed the outcome in Brown. That’s seven years in which they could have been doing a lot to ensure that those Southern states were actually complying with the Supreme Court’s decision rather than trying to circumvent it.

Mike McShane: That’s fascinating. I don’t think I ever know. Did the AFT or other unions come out

Michael Bindas: AFT did. Yes. AFT, different, different story there. I believe they filed an amicus brief in support of the children in Brown. The NEA did nothing.

It sat on the sidelines. And like I said, when the decision came down, they published it, they reproduced it in the NEA journal, but that’s, that was it.

Mike McShane: That’s, well, again, that’s not fantastic. I actually, until you told me that, I did not know that story. That is super interesting. I feel like there’s a book to be written about those seven years and like what was happening behind the scenes.

Okay. So, so we’ve talked about the past and I think we’ve litigated that to, to, to borrow a term from, from, from your work. So now let’s talk about the present.

So it could be true. All of these arguments could be true that, that we say, all right, it’s, it, it doesn’t have these racist origins. It predates it.

And the stuff that they were talking about here, isn’t really the same. They use some of the same words, but you know, lots of things use similar words and it doesn’t mean the same, but there could be effects today that are racist or segregative or others. And you tackle that in this paper too.

So bring us up to the present and what’s, what’s the sort of state of play with these questions? Sure, sure.

Michael Bindas: Yeah. One other thing on the past though, if you don’t mind, go ahead. I think we just talked about, you know, the fact that choice is a, is a concept and, and as a practice predated Brown.

But I think it’s, you know, just important to underscore just how much, how true that is and what the true roots of choice were. Right. Sure.

I trace the origins of school choice as a concept primarily to Adam Smith, Thomas Paine, and John Stuart Mill. So quite a trio, quite a trio. But you have these like great classical liberal thinkers, philosophers, economists, you know, in Wealth of Nations, Adam Smith talks about the need to inject competition into education.

He doesn’t advocate for necessarily a voucher program per se, but he’s very much looking for ways to make teachers more responsive to the needs of students. In The Rites of Man, Thomas Paine actually does propose a voucher program for the education of the poor. And likewise in On Liberty, John Stuart Mill does the same.

So those are the folks to whom I trace the true origins of choice. And in fact, choice was operating in the United States, not, not widespread, but you know, I, I think there’s an argument to be made that the first school choice program in the United States was in 1802 in Pennsylvania, when the legislature required localities to, to tax for the purpose of providing tuition funds to poor children to attend the school of their choice. Texas had a choice program in the mid 19th century.

And of course, Vermont and Maine adopted choice programs later on in the 19th century. And it was that choice program that was, Maine’s choice program that was at issue in Carson. It continues to operate to this day.

So again, choice as an idea, but also as a practice predated Brown by many, many, many years. And so the idea that this all came about as a, as an effort to circumvent Brown and to do an end run around Brown is simply not true. The idea was captured by those segregationists, but the idea certainly didn’t originate with them.

So, all right. So segregative effects, sorry.

Mike McShane: Very good. No, but that’s, no, that’s awesome. Listen, this is the EdChoice podcast. If you bring up Adam Smith and John Stuart Mill, Thomas Paine, we brought, we may take or leave, but Adam Smith, no, Thomas Paine’s great. Adam Smith, John Stuart Mill, can’t, can’t miss, but yeah, so bring it up to the present day.

Michael Bindas: Yep. Okay. So, so today, obviously these, these programs do not allow discrimination based on race today.

These programs are race neutral and they, they prohibit racial discrimination, even if they didn’t, federal law prohibits racial discrimination, including by private schools, which was unfortunately not true back, you know, when Brown was decided. So the opponents can make no argument that, that these programs are kind of racially motivated today, that the purpose of these is, is to perpetuate segregation or reinstitute segregation. So what they do is say, well, but they do have segregative effects, that these programs, typically the argument goes like this, that more white children than black children use these programs.

The white children use them to escape the public schools and the public schools as a result, wind up more segregated because of all the white students fleeing them through these programs. So that, that’s basically the argument. And then they, you know, we can, if, if folks are interested, we could talk about, you know, kind of the, the, the legal vehicle through which they make this argument, but that’s, that’s the gist of it.

But there, you know, the, the empirical research that has been done on those claims, like putting aside the kind of legal merit of them, just the premises of the, of the claim is, is just false. The studies that have been done overwhelmingly show number one, that choice programs lead to a more integrated environment for the children who use these programs. So typically the children who, the children who use a voucher or an education savings account are going into a more integrated environment by virtue of using these programs.

But also, and the studies are less numerous on this issue, but still show that these programs also have an integrative effect on the public schools that children leave. There have been studies in Ohio and what’s the one I’m missing? Louisiana that show that there’s an integrative effect on the public schools as well.

And so the very premise of this argument that, you know, there’s white flight from the private schools and that leads to more integrated public schools is just false. So, you know, as a factual matter, there’s, there’s nothing to this argument. And of course, as a legal matter, it fails for, for other reasons as well, but it’s simply not true.

Like the origin story that this all came about because of race, the idea that it continues to have racially segregative effects today is simply not the case.

Mike McShane: Yes. And anyone who’s curious about this not, I have to say for a, and I don’t know, you come from a somewhat quantitative background. Is that before you got into law?

Is that where you, do you have, you’ve got, there’s some math, is there some math in your past?

Michael Bindas: I blew stuff up in the army. I don’t know that that’s the best way to use math you can think of. I had to calculate, you know, the amount of C4 to use, but yeah.

No, I don’t, I don’t have a kind of math based background or quantitative based background. I had to take some engineering courses in college, but beyond that.

Mike McShane: I was just going to say as, as a researcher and as someone who compiles these for a non-researcher, I think you did a wonderful, again, I’m pumping your tires, but, you know, your, your read of the research literature, because we, so we publish our one, two, threes of school choice every year. We have a section on, on this very thing. You did a fantastic job summarizing it.

I agree entirely with, with the way that you talked about the, the, the research literature on this question. And I think it’s like completely accurate and actually explained to a lay audience in some ways that sometimes we as researchers are not as good at.

Michael Bindas: Well, good. Thank you for saying that. And I’m glad I, I appear to have gotten it right.

Mike McShane: Cause it would have been bad if I came on here and you’re like, well, actually as it, as, as it turns out in that Louisiana study, which is actually, it’s actually funny because there is, so that Louisiana study was done by some, some former colleagues of mine at the university of Arkansas and others. And then there was a kind of quote unquote re analysis of it done by the century foundation that gets waved around all the time right now that the century foundation build it as like their own study of this topic. But it wasn’t, they literally just took the results from this previous paper.

And for anyone who’s, who wants to have a good laugh on a little research, if you Google education, next, uh, Anna egalitate, who was the author of this wrote a rejoinder. So she did the original paper. These people did their quote unquote reanalysis and Ana in like, she did it always the best ones are in like 800 words or like six.

It was like so short. And she just levels them of just all of the mistakes that they made and the, the, the way that they basically framed it. It’s, it’s a piece that’s used a lot.

And I just, whenever someone uses, I just like send that little short thing. I was like, I promise this will take you four minutes to read and you’ll realize that this is a terrible study.

But so you you did talk for a bit about the legal vehicles that they’re using. And I think maybe so, you know, people can check out the one, two, threes to back up everything that you just said, that the empirical literature does not back up that these things are happening. In fact, sort of points in the opposite direction.

But that has never stopped anyone before. So how do you see this sort of in the present and moving forward? Is this a legal strategy that people are going to use?

How are they trying to sort of prosecute these cases? And what do you think is going to happen there?

Michael Bindas: Yeah, so I do think it’s a legal theory that they’re going to use. But I also think it’s a legal theory that’s going to end the same way that their religion based legal theory did, which is failure. So we have seen this type of argument increasingly made in challenges to these programs.

Typically, you know, it would come in early on after the Center for American Progress report is kind of through an amicus brief. So, you know, the NEA or a state affiliate of they would just drop this in as kind of context for the court to consider this claim that these programs originated as an attempt to circumvent Brown. But over the last few years, we’re now seeing the school choice opponents create legal claims around this argument.

Now, you would think that the most obvious hook for that legal argument would be the Equal Protection Clause of the U.S. Constitution, right? Typically, when you have a law that is allegedly, you know, racially discriminatory, you challenge that law under the Equal Protection Clause. They can’t do that, though, because one of the requirements when you have a race neutral law like this, you know, not only are these programs race neutral, they expressly prohibit racial discrimination.

But when you have a race neutral law that you’re claiming is nevertheless harms people, minority people, you have to show some kind of discriminatory purpose. And they simply can’t do that. You know, yes, they can note that the segregationists, you know, 75 years ago kind of hijacked the idea of choice for racist ends.

But no one can plausibly contend that programs adopted, you know, since 1990 programs that another great point to emphasize here that were often advocated for by African-American legislators and activists, right, you know, for the explicit purpose of providing opportunity to black minority children. Yeah, for sure. Absolutely.

I mean, you and all of the, you know, the great leaders in this movement early on, whether it was Polly Williams and Howard Fuller in Wisconsin, Fannie Lewis in Ohio, Virginia Walden Ford, Kevin Chavis and Mayor Williams in D.C. These were African-American activists and legislators who were advocating precisely for the reason you mentioned, Mike, which is to provide better opportunity for underserved minority students.

So they can’t plausibly opponents can’t plausibly contend that these programs are motivated today by racial animus, which is what they would need to do to have a successful equal protection challenge under the federal constitution. So what they’re doing instead is trying to shoehorn this argument into state education clauses. Every state constitution has some language concerning education.

Typically, it requires the legislature to provide for a public school system. And oftentimes there’s language that describes what that public school system has to look like. It has to be thorough and efficient or, you know, some language to that effect.

So what they’re arguing now is that the public school system that we’re required to have under the constitution is necessarily a non-segregated public school system. And because the argument goes, all these white kids are using school choice programs and rendering the public schools more segregated as a result, which we’ve already shown factually is not true. But their argument is because these programs are leaving the public schools more segregated, it contravenes the legislature’s obligation to ensure a non-segregated public school system.

It’s a strange, strange argument, particularly, again, when you note that, or when you remember that these programs prohibit racial discrimination.

Mike McShane: Well, it’s like why they were founded, how they work and their effect as observed.

Michael Bindas: Actual effects.

Mike McShane: Yeah.

Michael Bindas: Exactly. So that’s what they’re trying to do. Now, we don’t have, you know, right now, I think that we’re most actively defending against this argument in a case in Ohio, a challenge to that state’s educational choice program.

There is a case pending in Arkansas right now, where the plaintiff is challenging an education savings account program there. And the complaint recounts the, you know, the use of vouchers to circumvent Brown, doesn’t as directly rely on that history as the Ohio case does. But nevertheless, we’re more and more seeing this as a line of attack.

And it’s a recent phenomenon, right? The Center for American Progress report came out in 2017. That was the kind of pivot point.

And I think, you know, the public school establishment and other opponents of choice kind of began seeding the court of public opinion, then the court of law with amicus briefs. And now over the last few years, building legal claims around this argument. So we don’t have any decisions yet from courts resolving this issue.

We will have one from an Ohio trial court in the coming months. And, you know, of course, that case one way or another will be appealed. But, you know, we will start seeing courts grapple with this issue.

And one of the purposes of writing this paper was, as courts are forced to grapple with this issue, I wanted to, you know, to kind of tell the truth, the historical truth and kind of the empirical truth about these programs. Because often, you know, when you’re briefing these issues in court, you’re dealing with page limits and, you know, there’s only so much that you’re allowed to tell the court. And this telling requires a lot more than the typical 25 page, you know, limit you might get on a court brief.

And so I really wanted to put something out there that courts could certainly turn to, but just as importantly, that the public could turn to, because, you know, they’re hearing more and more from folks like Randy Weingarten, president of AFT, that, you know, in her words, vouchers are only the slightly more polite cousin of segregation. And I wanted folks to know that’s simply not true.

Mike McShane: Look, I agree with you a hundred percent, as I have said, and I will reiterate, if you are involved in the educational choice movement, if you’re a researcher, if you’re an advocate, if you’re a parent, if you’re a school leader, I highly recommend sometime over the summer, hopefully on a nice sunny day, sit on your back patio or, you know, God willing you’re by the beach or something where it’s even better by the swimming pool. Give this paper a read. I think it will make you a much better advocate because when these claims come up, and look, it’s tough.

Not everybody knows the history. It happened in a couple of different states. Like you may know, you may be from Arkansas and you know the history of Orville Faubus and the Little Rock Nine and like all of that, but you don’t know what they were doing in Virginia or you don’t know what they were doing in Louisiana.

So this is a paper that puts all of that together. And similarly, you might know history well, but you don’t know the current research literature on this or vice versa. So people should read this paper.

It’s called School Choice is Racist and Other Myths. It’s in the Syracuse Law Review. It’s very defined, very easy to find with the Google machine.

Michael Bindas, thanks for writing this paper. Thanks for all the work that you do. And thank you for joining us today on EdChoice Chats.

Michael Bindas: Thank you, Mike. Thank you for the kind words. And thank you for the opportunity to talk about the paper.

I really, really appreciate it.

Mike McShane: And thanks to everybody for listening. You know, the standard spiel that’s at the end of podcasts to subscribe and like and share and all of those wonderful things. But I look forward to chatting with all of you again on the next edition of EdChoice Chats.